Heritage Foundation: The Rights of Guantanamo

The assault on justice continues at the U.S. detention facility at Guantanamo Bay, Cuba — and it has nothing to do with the trial of enemy combatants accused of war crimes.

I recently joined about three dozen journalists and observers for the arraignment of Canadian suspect Omar Khadr. Khadr was captured on the battlefield in Afghanistan and is alleged to have committed murder, attempted murder, and to have provided material support to Al Qaeda, among other charges.

There is only one thing you learn for sure watching the proceedings of the U.S. Military Commission, a tribunal established by Congress last year to try unlawful enemy combatants for crimes. The defendants certainly get their day in court. Khadr was defended by an aggressive, competent defense team that clearly had the interests of its client at heart.

The defense was led by a young naval staff judge advocate who spent most of the morning challenging the military judge’s impartiality. Given that the judge had previously thrown out the government’s case against Khadr, causing the Bush administration great embarrassment and requiring the prosecutor to regroup and start over, the charge rang kind of hollow. Indeed, the judge in the case is a 30-year veteran with more than a dozen years on the bench and three years of experience with the Military Commission, who by his count has adjudicated some 1,500 cases. He seems an unlikely target to go after. Still, that is the job of a defense lawyer.

The defense strategy seems to be to stretch out the proceedings as long as possible, raising every objection imaginable in the hopes that changes in U.S. administration will short-circuit the commissions. At the same time, the defense plays to the Canadian press, hoping to build a constituency north of the border for cutting a deal for Khadr (an unlikely prospect — I’m told there’s little sympathy for Khadr in Canada).

After the hearing at the news conference, the defense dropped another bombshell, claiming the government withheld evidence in the case.

All these tactics are exactly what defense lawyers are supposed to do — defend the rights of the accused. Those are the rights of Guantanamo’s detainees.

The other “rights,” however, are largely missing. Those would be reasonable independent voices commenting on the proceedings.

Many of the “observers” allowed to witness the arraignment hearing, like the ACLU, acted a lot more like advocates than observers. Every legal issue raised in the proceedings elicited near-hysterical claims that such challenges proved the commissions were illegitimate — and likely criminal acts themselves. It certainly appeared that these “observers” came to Guantanamo not to observe and comment on the commissions but to condemn them.

They were the first to rush to the reporters after the hearings and the last to walk away from the microphones. They may have wasted their breath — the legal news cycle that day was dominated by another O.J. trial and the indictment of Bernie Kerik.

It’s not clear why the observers think that going after the U.S. military at Guantanamo in such an unfair and biased manner is so important. Certainly, I felt that the young men and women leaping to the microphones were just doing the job they believed in — advocating for the policies of their organizations.

Guantanamo provides salacious and inflammatory headlines, but it’s hard to see why watching a handful of defense attorneys, judges and prosecutors doggedly trying to provide a fair and impartial trial in a largely open and transparent process represents such a great threat to the cause of freedom and justice around the world.

Perhaps the observers can afford to spend time here because the world is a safer place than it was 30 years ago. According to a comprehensive multi-year study by the Human Security Report Project based at the University of British Columbia, there has been a major global decline in armed conflicts, genocides, human rights abuses and military coups. Armed conflicts alone have dropped by 40 percent since 1992. So maybe they just have more time on their hands.

Perhaps they have other reasons. If they believe, however, that they are truly combating some massive abuse of human rights perpetrated by the U.S. military — they are just dead wrong.

History will judge. My guess is that history will look more kindly on the soldiers, sailors, marines, airmen and coast guardsmen at Guantanamo — all doing their best to follow the rule of law to the letter of the law.